October 28, 2020
Dr. Brent RoussinChief Provincial Public Health Officer4003 – 300 Carlton St.Winnipeg, MB R3B 3M9Brent.Roussin@gov.mb.ca
Hon. Cameron FriesenMinister of Health, Seniors and Active LivingRoom 302 Legislative Building450 BroadwayWinnipeg, MB R3C 0V8minhsal@leg.gov.mb.ca
Dear Dr. Roussin and Minister Friesen,
I am writing on behalf of the Canadian Civil Liberties Association (CCLA), seeking information about the province’s Self-Isolation Order for Persons Entering Manitoba. The CCLA is a national, non-profit, public interest organization that works to protect and promote fundamental rights and freedoms throughout the country. Since the outset of the pandemic, we have been engaging with governments with the aim of ensuring that the legal and policy responses to COVID-19 are evidence-based and do not unduly restrict constitutionally protected rights and freedoms.
The province of Manitoba currently has a self-isolation requirement for individuals entering the province from some parts of the country, but not others. Individuals arriving from western Canada or northwestern Ontario are not required to self-isolate, while those entering from other parts of the country must do so for a period of 14 days, subject to certain listed exceptions. Based on our review of past orders, it appears this requirement has been in place since the end of June. The order was amended and renewed recently, in mid-October.While we appreciate that the COVID-19 pandemic presents governments with unique challenges, we have become increasingly concerned by provincial and territorial orders that are erecting barriers to entry by other Canadians. In some cases, as in the case of the “Atlantic bubble”, travel into the province is restricted absent a specific exemption. As you may know, CCLA initiated a legal challenge to Newfoundland and Labrador’s restrictions and that province’s Supreme Court recently determined that they violate the mobility rights protected by section 6 of the Canadian Charter of Rights and Freedoms but held that these restrictions were reasonable and justified. An appeal of that decision is underway.
Although a self-isolation requirement is a less infringing measure than an outright travel ban, in our view, both constitute restrictions on mobility rights that must be justified – based on evidence and reason. When Manitoba first lifted the self-isolation requirement for some Canadian travelers back in June, it appears that the Western Canadian provinces had active case rates that were much lower than some of the Eastern provinces. Presumably this provided the rationale for adopting the approach set out in the self-isolation order. For example, as of June 10, 2020, Manitoba had .58 active cases per 100,000 people. The comparable figure in British Columbia was 3.65, 8.49 in Alberta and 1.79 in Saskatchewan. This was compared to a rate of 23.93 in Ontario and 334.93 in Quebec. It is worth noting, however, that even in June, several Atlantic provinces and all the territories had active case rates that were lower than Manitoba’s. Notwithstanding this fact, those traveling to Manitoba from these places were required to self-isolate upon arrival.
The figures more recently show a different picture and cast doubt on the continuing rationale for the province’s differential treatment of those arriving from different parts of the country. As of October 10, 2020, Manitoba had 74.26 active cases per 100,000 people. This figure was higher than any province except for Quebec, and almost double the rate in Ontario (39.5). Given the substantial shift in numbers and the incidence of COVID-19 throughout the country, we suggest that the lines drawn in June may no longer be tenable, if they ever were.
As your Attorney General knows well, limitations on constitutional rights must be “demonstrably justified,” such that you ought to have evidence justifying your limiting of Canadians’ mobility rights. We are requesting that that evidence be disclosed to the public. In particular, we are writing to request the rationale and evidence behind regulations requiring some travelers to self-isolate, even though they may be arriving from places with a lower incidence of COVID than Manitoba.
We look forward to your reply.
Cara Faith ZwibelDirector, Fundamental Freedoms Program
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